Opinion
Civil Action No. 02-2444-CM.
October 21, 2004
MEMORANDUM AND ORDER
This matter comes before the court on defendant Numark Industries Company, Inc.'s (Numark's) Motion to Dismiss Claims of Defendant FDL, Inc. (FDL) (Doc. 90). Numark claims that FDL's claims against it should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted.
I. Procedural Background
Plaintiff Tony Wheeler filed his original complaint against defendant FDL, Inc. (FDL), on September 17, 2002. Plaintiff filed a first amended complaint on December 6, 2002, adding Numark Industries, Co., Inc. (Numark) as a defendant. Plaintiff filed a second amended complaint on November 20, 2003, correcting Numark's identity. Plaintiff's cause of action arises out of an alleged fall from an executive chair on December 7, 2000. Plaintiff alleges that the executive chair from which he fell was defective and unreasonably dangerous and that defendants were negligent in manufacturing and distributing the chair.
On November 24, 2003, FDL filed a third party complaint against Numark and an amended answer to plaintiff's complaint, which included two cross claims against Numark. On December 11, 2003, FDL successfully served its third party complaint on Numark through the Office of the Kansas Secretary of State.
FDL's third-party complaint and cross-claims contain identical claims against Numark for contribution and indemnity in the event FDL is found liable to plaintiff.
Numark filed motions to dismiss plaintiff's claims on January 22, 2004, and again on April 8, 2004. On August 19, 2004, the court entered an order denying Numark's motions to dismiss plaintiff's claims against it, and granted plaintiff a permissive extension of 20 days in which to obtain service of process on Numark. Plaintiff effected service of process on Numark on August 23, 2004. On September 2, 2004, Numark filed a motion to reconsider the court's August 19, 2004 Order, or, alternatively, to certify the court's August 19, 2004 Order for an interlocutory appeal to the Tenth Circuit. The court denied Numark's motion for reconsideration and its request for an interlocutory appeal on October 12, 2004.
In the motion currently before the court, Numark claims that FDL's claims against it are barred (1) by the applicable statute of limitations; (2) because Numark is not a first-party defendant to the litigation; and (3) because FDL asserts claims of contribution that are not recognized by Kansas law.
II. Legal Standard for Motion to Dismiss
The court will dismiss a cause of action for failure to state a claim only when it appears beyond a doubt that the plaintiff can prove no set of facts in support of the theory of recovery that would entitle him or her to relief, Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998), or when an issue of law is dispositive. Neitzke v. Williams, 490 U.S. 319, 326 (1989). The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, Maher, 144 F.3d at 1304, and all reasonable inferences from those facts are viewed in favor of the plaintiff. Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984). The issue in resolving a motion such as this is not whether the plaintiff will ultimately prevail, but whether he or she is entitled to offer evidence to support the claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).
III. Discussion
As an initial matter, the court finds Numark's argument that it is not a first party defendant moot. Plaintiff filed his amended complaint, adding Numark as a party, one day before the applicable two-year statute of limitations under Kan. Stat. Ann. § 50-513 expired. The court granted plaintiff an extension of time in which to effect service of process on Numark, and plaintiff did so on August 23, 2004. Accordingly, Numark is a first party defendant in this litigation.
The court next turns to Numark's argument that FDL's contribution and indemnity claims fail as a matter of law because Kansas does not recognize contribution among joint tortfeasors or indemnity claims not based on contract. Through its third party complaint and its cross claims, FDL seeks reimbursement from Numark for any damages it may be forced to pay plaintiff, claiming that FDL is an innocent seller of the allegedly defective executive chair.
Kansas eliminated contribution and indemnity among joint tortfeasors in comparative negligence cases with the enactment of Kansas' comparative negligence statute. Kan. Stat. Ann. § 60-258a; see Brown v. Keill, 224 Kan. 195, 203, 580 P.2d 867 (1978). Under § 60-258a, "individual liability of each defendant for payment of damages will be based on proportionate fault, and contribution among joint judgment debtors is no longer required in such cases. . . ." Hefley v. Textron, Inc., 713 F.2d 1487, 1496 (10th Cir. 1983) (citing Wilson v. Probst, 224 Kan. 459, 462, 581 P.2d 380 (1978) (quoting Brown, 224 Kan. at 204, 580 P.2d 867)). Therefore, no person or entity could be liable to FDL for all or part of plaintiff's claims against it. Rather, "under the Kansas law of comparative negligence, a defendant has a right to have the fault of all participants in an occurrence measured in one action, and to reduce his or her liability by the amount of fault attributable to the other participants, irrespective of whether they are joined as parties or are immune from liability." Hefley, 713 F.2d at 1496. Thus, where multiple parties could be at fault for tort claims, each party will be responsible only for its proportionate share of damages. Haysville U.S.D. No. 261 v. GAF Corp., et al., 233 Kan. 635, 640-41, 666 P.2d 192 (1983).
Numark is a first party defendant and has been designated as a party at fault by FDL for purposes of comparing fault. FDL's fault will be considered in the context of the fault of all parties claimed to be at fault, and FDL will be responsible only for its proportionate share of the fault for plaintiff's claimed damages, regardless of Numark's role in the litigation. Accordingly, FDL's third party complaint and cross claims seeking reimbursement from Numark are not the appropriate vehicle through which to compare the parties' fault, are barred by Kansas law, and thus should be dismissed. IT IS THEREFORE ORDERED that defendant Numark Industries Company, Inc.'s Motion to Dismiss Claims of Defendant FDL, Inc. (Doc. 90) is granted.
Because the court finds this issue dispositive of FDL's claims against Numark, the court does not reach Numark's statute of limitations argument.
IT IS FURTHER ORDERED that defendant FDL, Inc.'s Third Party Complaint (Doc. 58) be and is hereby dismissed.